Citation Nr: 0609450
Decision Date: 03/31/06 Archive Date: 04/07/06
DOCKET NO. 03-22 072A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky
THE ISSUES
1. Entitlement to service connection for a low back
disability claimed as secondary to the veteran's service-
connected left shoulder disability.
2. Entitlement to service connection for a right foot
disability claimed as secondary to the veteran's service-
connected left foot disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The veteran served on active duty December 1983 to May 1996.
This matter comes to the Board of Veterans' Appeals (Board)
from a June 2002 rating decision by which the RO denied
entitlement to the benefits enumerated above.
In May 2005, the veteran withdrew his request for a video
teleconference hearing before a Veterans aw Judge.
Accordingly, the Board will proceed with consideration of the
veteran's claim based on the evidence of record, as he has
requested. See 38 C.F.R. § 20.704(e) (2005).
FINDINGS OF FACT
1. A low back disability is not shown to be related to the
veteran's service-connected left shoulder disability, and it
is not shown to be directly related to his active duty
service.
2. The veteran is not shown to be suffering from any
specific disability of the right foot.
CONCLUSION OF LAW
1. The veteran's low back disability is not due to disease
or injury that was incurred in active duty service nor is it
the proximate result of the veteran's service-connected left
shoulder disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.655 (2005).
2. A right foot disability is not due to disease or injury
that was incurred in active duty service nor is it the
proximate result of the veteran's service-connected left foot
disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2005)), imposes obligations on VA in terms of its duties to
notify and assist claimants of VA benefits.
The VCAA notice requirements have been satisfied by virtue of
letters sent to the veteran in July 2001, April 2002, and
July 2003. Those letters advised the veteran what
information and evidence was needed to substantiate the
claims decided herein and of his and VA's respective duties
for obtaining relevant evidence. Quartuccio v. Principi, 16
Vet. App. 183 (2002). He was specifically told that it was
his responsibility to support the claims with appropriate
evidence. The veteran has not alleged that VA failed to
comply with the notice requirements of VCAA. See Mayfield v.
Nicholson, 19 Vet. App. 103 (2005). In addition, by virtue
of the rating decision on appeal, the statement of the case,
and the supplemental statement of the case, he was provided
with specific information as to why these particular claims
were being denied, and of the evidence that was lacking. He
was also supplied with the complete text of 38 C.F.R.
§ 3.159(b)(1) in the statement of the case.
The RO's letters did not specifically tell the veteran to
provide any relevant evidence in his possession. However, he
was otherwise fully notified of the need to give to VA any
evidence pertaining to the claims. There is no allegation
from the veteran that he has any evidence in his possession
that is needed for a full and fair adjudication of this
claims. When considering the notification letters, the
rating decision on appeal, the statement of the case, and the
supplemental statement of the case, as a whole, the Board
finds that he was aware that it was ultimately his
responsibility to give VA any evidence pertaining to these
claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004) (Pelegrini II).
In concluding that the VCAA notice requirements have been
satisfied, the Board has relied on communications other than
the RO's formal VCAA notice letters to the veteran. However,
what VCAA seeks to achieve is to give the claimants of VA
benefits notice of the elements discussed in Pelegrini II.
Once that is done-whether by a single notice letter or via
more than one communication-the essential purposes of VCAA
have been satisfied. Here, because each of the four content
requirements of a VCAA notice has been met, any error in not
providing a single notice to the appellant covering all
content requirements was harmless. See, e.g., 38 C.F.R. §
20.1102 (2004); Mayfield, supra.
The Board also concludes VA's duty to assist has been
satisfied. The veteran's service medical records are in the
file. The file contains post-service private and VA
treatment records. The Board notes that a Social Security
disability claim may well be pending. There is no need to
remand for Social Security records because there is no
indication that they pertain to the matter on appeal.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim, as defined by law.
The veteran was afforded medical examinations pertinent to
the claims, he failed to appear for two such scheduled
examinations.
The Board notes that during the pendency of this appeal, on
March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued a decision in the consolidated
appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-
1506, which held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim, including the
degree of disability and the effective date of an award. In
the present appeal, the veteran was provided with notice of
what type of information and evidence was needed to
substantiate his claims for service connection for a low back
and right foot disabilities, but he was not provided with
notice of the type of evidence necessary to establish a
disability rating or effective date for the disabilities on
appeal. Such omission is harmless because, as outlined
below, the claims of service connection are being denied. Of
course, an error is not harmless when it "reasonably
affect(s) the outcome of the case." ATD Corp. v. Lydall,
Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). Here, it does not.
VA satisfied its duties to inform and assist the veteran at
every stage of this case. Therefore, he is not prejudiced by
the Board considering the merits of the claims in this
decision.
Standard of Review
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given the claimant. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990); 38 C.F.R. § 3.102. When the positive and negative
evidence as to a veteran's claim are in approximate balance,
thereby creating a reasonable doubt as to the merits of a
claim, the veteran prevails. Ortiz v. Principi, 274 F.3d
1361 (Fed. Cir. 2001). If the Board determines that the
preponderance of the evidence is against the claim, it has
necessarily found that the evidence is not in approximate
balance, and the benefit of the doubt rule is inapplicable.
Id. at 1365.
Law and Regulations
Service connection will be granted if it is shown that the
veteran suffers from disability resulting from an injury
suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, naval, or
air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Additionally, disability which is proximately due to or the
result of a service-connected disease or injury shall be
service connected. 38 C.F.R. § 3.310.
A claim of service connection for a disability must be
accompanied by medical evidence establishing that the
claimant currently has a claimed disability. Absent proof of
a present disability, there can be no valid claim. See,
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38
U.S.C. § 1110 requires current symptomatology at the time the
claim is filed in order for a veteran to be entitled to
compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997) (38 U.S.C. § 1131 requires the existence of a present
disability for VA compensation purposes).
When a claimant of VA benefits fails to report for an
examination scheduled in conjunction with an original
compensation claim, the claim shall be rated based on the
evidence of record. When the examination was scheduled in
conjunction with any other original claim, a reopened claim
for a benefit that was previously disallowed, or a claim for
increase, the claim shall be denied. Examples of "good
cause" include, but are not limited to, the illness or
hospitalization of the claimant, death of an immediate family
member, etc. 38 C.F.R. § 3.655.
Low back
The Board notes that the veteran failed to appear for two of
the VA medical examinations scheduled in connection with his
claims without good cause shown. Thus, this issue will be
decided based on the evidence of record. Id.
The service medical records reflect complaints of low back
pain in June 1992 and July 1993. As to the former, the
assessment was musculoskeletal low back pains and spasm. As
to the latter, the assessment was of post dehydration with
low back pain. The separation medical examination report
indicated a normal spine. On the corresponding report of
medical history, the veteran denied back pain.
On September 1996 VA general medical examination, the
examiner made no diagnoses pertaining to the low back.
A May 2000 X-ray study of the lumbar spine revealed "very
little" degenerative changes manifested by minimal spur
formation of the vertebral bodies anteriorly.
In December 2000, the veteran complained of low back pain
that began six or seven months earlier. A mild spasm in the
lumbar area was diagnosed.
On November 2001 VA examination of the joints, the examiner
diagnosed, in pertinent part, mild postoperative pain to the
left shoulder without limitation of motion, and degenerative
joint disease of the lumbosacral spine and bilateral
radiculopathy. The examiner indicated that a magnetic
resonance imaging (MRI) of the lumbar spine was interpreted
as normal by a radiologist and neurosurgeon. The examiner
commented that an X-ray study of the lumbar spine was normal.
A computed tomography (CT) scan of the lumbar spine indicated
no disc herniation. The examiner opined that low back pain
was possibly related to other conditions but not to the
service-connected left shoulder disability, apparently
because the left shoulder was found to be normal with the
exception of mild postoperative pain.
Based on the foregoing evidence, the Board concludes that a
current low back disorder is no the proximate result of the
veteran's service-connected left shoulder disability.
Indeed, the November 2001 VA examiner was explicit in
indicating no such connection between the two. As such,
service connection for a low back disability on a secondary
basis is not warranted. 38 C.F.R. § 3.310. In this regard,
the Board notes that the veteran's opinion regarding the
etiology of a low back disability is not one upon which the
Board may rely. See Espiritu v. Derwinski, 2 Vet. App. 492,
494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent
medical evidence means evidence provided by a person who is
qualified through education, training, or experience to offer
medical diagnoses, statements, or opinions).
The evidence, moreover, does not reflect a direct nexus
between the veteran's low back disability and service. While
the service medical records do reflect minimal treatment for
low back pain on two occasions, the separation medical
examination did not indicate any problem of the low back, and
the veteran himself denied any low back symptomatology. As
well, the post-service medical evidence does not reflect any
nexus between any present low back disability and service.
Therefore, there being no apparent relationship between any
present low back disability and service, service connection
for a low back disability on a direct basis is denied.
38 C.F.R. § 3.303.
This is a case where the preponderance of the evidence weighs
against the veteran's claim. Pursuant to the medical
examination in November 2001, a VA examiner opined that the
veteran's low back disability was unrelated to the service-
connected left shoulder disability. There is no competent
medical evidence to the contrary to include evidence of a
direct nexus between the claimed low back disability and
service. As the preponderance of the evidence is against the
veteran's claim, the benefit of the doubt rule is not for
application. See Gilbert, 1 Vet. App. at 54.
Right foot
The Board notes that the veteran failed to appear for two of
the VA medical examinations scheduled in connection with his
claims without good cause shown. Thus, this issue will be
decided based on the evidence of record.
In April 1990, the veteran complained of a swollen right
foot. He denied injury. That month, the veteran complained
of pain in the joint of the big toe of the right foot. Some
slight swelling was observed. There was a hard mass on the
bottom of the right foot. A consultation report reflected an
impression of hallux extensor longus tendonitis versus early
bunion.
In August 1993, the veteran complained of right foot pain.
The veteran denied trauma. Right ankle inversion was
diagnosed.
The February 1996 separation medical examination report
indicated no disability of the right foot.
On a September 1996 VA general medical examination, the
examiner noted no deformity or edema of the feet. There were
no calluses and good range of motion of the ankles.
In December 1999, a contusion of the right great toe was
diagnosed.
On November 2001 VA orthopedic examination, after reviewing
the record and examining the veteran, the examiner diagnosed
right foot pain with questionable mild metatarsalgia from a
history provided by the veteran. The examiner indicated that
a further neurologic examination was required in order to
assess the veteran's claimed right foot disability. He did
not report for that examination. The examiner noted some
right foot discomfort but indicated that this could not be
related to left foot metatarsalgia.
A review of the evidence reveals that the veteran suffers
from right foot pain and/or discomfort. No specific
disability of the right foot has been diagnosed. The finding
of questionable mild metatarsalgia is not probative of the
matter at hand because a medical opinion premised upon an
unsubstantiated account of a claimant is of no probative
value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233
(1993) (generally observing that a medical opinion premised
upon an unsubstantiated account is of no probative value, and
does not serve to verify the occurrences described); Reonal
v. Brown, 5Vet. App. 458, 461 (1993) (the Board is not bound
to accept a physician's opinion when it is based exclusively
on the recitations of a claimant). Moreover, pain alone,
without a diagnosed or identifiable underlying malady or
condition, does not in and of itself constitute a disability
for which service connection may be granted. See Sanchez-
Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in
part, and vacated and remanded in part sub nom. Sanchez-
Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The
veteran's right foot discomfort, which is tantamount to pain,
is not a condition for which service connection can be
granted absent an underlying diagnosis. Id.
The Board notes that the veteran's opinion regarding the
nature and etiology of his alleged right foot disability is
not one upon which the Board may rely. Espiritu, supra;
38 C.F.R. § 3.159.
From the foregoing, it is apparent that the veteran has no
disability of the right foot for which service connection can
be granted. In the absence of a present disability, service
connection for the veteran's claimed right foot disability
must be denied. 38 C.F.R. §§ 3.303, 3.310; Gilpin, supra;
Degmetich, supra.
The preponderance of the evidence weighs against the
veteran's claim. Pursuant to a comprehensive medical
examination in November 2001, a VA examiner found no clear
right foot disability. There is no competent medical
evidence to the contrary. As the preponderance of the
evidence is against the veteran's claim, the benefit of the
doubt rule is not for application. See Gilbert, 1 Vet.
App. at 54.
ORDER
The appeal is denied.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs